DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Sealy of Australia (Vic.) Pty. Ltd T/A Sealy
(B2018/1072)

DEPUTY PRESIDENT MASSON

MELBOURNE, 20 NOVEMBER 2018

Proposed protected action ballot of employees of Sealy of Australia (Vic.) Pty. Ltd T/A Sealy.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Sealy of Australia (Vic.) Pty. Ltd T/A Sealy (Respondent).

[2] On 20 November 2018, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr B Flanagan of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR702472.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought a protected action ballot from employees of Sealy of Australia (Vic.) Pty. Ltd, trading as Sealy, in relation to potential industrial action. The company opposed the ballot, leading to a legal dispute. The case was heard in the Fair Work Commission (FWC). The primary legal issue was whether the proposed ballot complied with the requirements set out in the Fair Work Act 2009 (Cth). Specifically, the FWC needed to determine if the ballot notice was reasonable and if the requirements for a protected action ballot were met, including whether the industrial action was related to a "work dispute."

The FWC examined the notice provided by the CFMEU to the employees. The Commission considered whether the ballot notice adequately informed employees about the nature and purpose of the ballot, including the potential industrial action and its relation to a work dispute. The FWC found that the notice was reasonably comprehensive and met the statutory requirements. It also considered the nature of the work dispute, concluding that it related to an industrial matter as defined by the Act. The Commission found that the ballot was procedurally valid and met the necessary criteria for a protected action ballot.

As a result, the FWC ruled in favour of the CFMEU, allowing the proposed ballot to proceed. The company's opposition was dismissed, and the employees were permitted to vote on the proposed industrial action. The FWC's decision emphasised the importance of proper notice and the procedural requirements for a protected action ballot under the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v Sealy of Australia (Vic.) Pty. Ltd T/A Sealy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established